Urban Government
Chapter 1: Introduction
1. Introductory Concepts
a. General questions for class?
i. 1. Should government being doing this?
1. Stay out of my way and let me do what I want
2. Tiebout: Provide me services
3. Frug / de Tocqueville: Build community
ii. 2. If so, what level of government should be doing this?
1. Madison concern of faction capturing government
2. Is there extra territorial impact of the action?
a. Who should get to vote on matter
b. Reynolds: General idea that should have a right to vote when government takes action impacting you.
3. Will the local citizen be able or interested in getting involved?
4. Does more levels of government led to more solutions or more inefficiencies.
iii. 3. Question of appropriateness of division of power and action between the people, legislature and courts.
b. Ways that Local Governments are Created
i. Top Down (County)
1. Local government is created by the state
2. Local government has no inherent sovereignty instead creature created by state
3. Local people have no input on matter: State just does it
ii. Bottom Up (City)
1. Formed by the decision and petition of the people
2. State creates municipality but only after people ask for city to be created.
c. Forms of Governments
i. Federal
ii. States
1. State is the source of police power / inherent law making power
a. Local government has no inherent powers on own / must get powers delegated from state.
2. Different structure of state constitution
a. Acts as restraint on state action / state actors not required to point to specific delegation of authority
b. States have to follow federal constitution though.
iii. Municipalities
1. Incorporation based on state law just like a private corporation
2. Decision by local citizens to create their own municipality instead of joins another preexisting municipality.
3. Characteristics
a. 1. State law classifies cities based on size and type of power they can exercise
i. Home Rule: Outright transfer of power from state to municipality.
1. Municipality has autonomy to take actions free from State control on purely local matters.
b. 2. Legislative and Executive Bodies
i. City Counsel
ii. Mayor / City Manager
iii. Unelected appointed administrative boards
iv. County
1. Created by the State
2. Includes both incorporated and unincorporated land in county.
3. County Board / County Executive
4. Reynolds: Conflict in county situation
a. 1. Serving all people in county yet providing more services to unincorporated residents who don’t get services from a city
b. 2. Different needs in urban v. rural residents
v. Township
1. Subdivision of counties
a. Reynolds: Unneeded duplication of county in some places.
2. Other places are pure bottom up direct government / New England Town.
d. General Purpose v. Special Purpose Government
i. General Purpose: Undertakes range of traditional government functions
ii. Special Districts: Given a specific purpose like school district
1. Both bottom up or top down creation
2. Given specific limits but governments like to use to get around preexisting limits like taxing and borrowing limits
3. Can be different size then unit that created it.
iii. Reasons for creation of special districts
1. 1. More efficient way to provide service / avoid politics of government
2. 2. Bypassing taxing and spending limits on governments
3. 3. Pass the buck on more difficult questions
4. 4. Allow exercise of power in unaccountable and unpublicized manner.
2. Question of Vertical Distribution of Power
a. Introduction
i. Should there be centralized or decentralized distribution of governmental powers to governmental units?
ii. How does this impact the achievement of the goals of government and liberty of citizens?
iii. Reynolds: Which modes create the benefits that we want?
1. Prevent tyranny
2. Quality of government decision making / service
3. Benefits to citizens (via participating for de Tocqueville)
iv. Reynolds: Constitution doesn’t help since it doesn’t mention local governments so the control of local governments is left very much to the states.
b. Madison
i. Better to have power at a higher level in order prevent the tyranny of faction.
1. Harder for one group to seize control of a larger government
2. Controlling the effects of faction instead of eliminating it causes
3. Responses:
a. 1. Elitist argument
i. Assuming that better quality people engaged in government / cream rising to the top of a larger pool.
1. JS Mills: Concern of low class of local leaders
b. 2. Faction can control the higher level too and perhaps that is more dangerous.
c. De Tocqueville
i. Power is best located at the local level since provides the opportunity for personal exercise of government allowing individual to become strong and repulse actions attempting to take freedom.
1. Each person is the best judge of their own interests and best able to satisfy their needs.
d. Madison v. De Tocqueville
i. What is the value of local participation:
1. Prevent tyranny by guiding action or providing strong individual
2. Local solutions better to local problems
3. Allow those with similar views to form governments
a. Allows for movement to places of people who share your view (Tiebout)
i. Reynolds: Doesn’t answer question of whether government should be doing this or at this level
e. Tiebout (Law and Economics View)
i. Reynolds: Tiebout and Frug both arguing for expansion of local power
ii. Consumer Voter View: Residents move to the locality that best satisfy their preferences for public goods. Choosing place you live the way you choose a TV.
1. Doesn’t say whether there should be centralized or decentralized government but is based on level of local autonomy that allows individual governments to differentiate themselves to attract residents
2. People with power are those who threaten to leave and the government reacts to in order to keep them.
3. Reynolds: Local autonomy is good to Tiebout because it allows to efficient division of services and broader type of services by local governments.
iii. Problems with Tiebout
1. Built on series of assumptions such as mobility, lack of externalities
2. Losses de Tocqueville idea of function of local democracy.
f. Frug: Critique of Tiebout but also believes in more power to local government
i. States should delegate more power to local governments so that local citizens can make decisions that they care about on matters that impact their lives
1. “Power and participation are inextricably linked: A sense of powerlessness tends to produce apathy rather than participation, while the existence of power encourages those able to participate in its exercise to do so.”
ii. Tiebout sees local government as a service provide while Frug expands the view to local government as a community builder.
3. Difference in State and Local v. Federal Structures
a. Theory
i. Similarity of state and federal constitutions
1. 1. Establish system of government
2. 2. Detail individual rights of citizens
a. States must respect federal constitutional minimums
b. States can expand individual rights beyond federal minimums or pattern state rights at level of federal rights.
ii. Difference:
1. States have inherent power so legislature can act in general and constitution acts as a limitation on state power.
a. Gangemi v. Berry (Upholding power of legislature to pass statute allowing for civil absentee voting even though state constitution only mentioned military)
i. People placed all legislative power in state so can legislate on any subject unless constitutional limitation
1. Reynolds: Leads to question of why have a state constitution since no need for authorization for state action.
a. Constitutions do provide value of placing limits
b. Impact on expression unius est exclusion alterius since no need to express authority in constitution so express of one power does not mean the exclusion of another.
2. Federal has no inherent power so must act under some express or implied delegation of authority under the constitution.
b. Formal differences
i. Much longer and more detailed state constitutions
c. Substantive difference
i. Elected judiciary in states
1. Question of whether will enforce unpopular rights and question of whether there is still impact on democracy.
2. Can provide advisory opinions unlike federal judges.
ii. Direct Government
1. Government action involving the people instead of some action via elected representatives
2. Types
a. Initiative: Voter proposed legislation that is presented to the legislature for action once meeting requirements like number of signatures.
i. Legislature decides on the legislative act.
ii. Legislature could also certify a question to the people to vote
lding governor hostage on one part of a larger bill on same subject
iii. Eliminates legislative compromise and give and take or will just occur in different bills instead of one larger bill
3. People v. Cervantes (Safe neighborhoods act struck down as violating the single subject requirement when dealing with criminal law, neighborhood and juvenile matters and fraud in government programs)
a. Rule: Subjects in legislation must have a natural and logical connection
b. Open Problem: How to determine natural and logical connection
i. Do the two items in a bill have to have a relationship to each other or to a shared common subject?
1. Example: Marital property and mineral rights.
a. Both relate to single subject of property but have no relationship to each other.
Chapter 2: Local Government in the American Constitutional Order
1. Introduction
a. Federal Constitution makes no mention of local government and does not say what the relationship should be between local, state and federal.
b. Three models of local government
i. 1. Local governments are creatures of the state Hunter v. Pittsburgh
1. No independent rights / simple agents of the state
2. Reynolds: Most common view of local government
ii. 2. Local government as mini democracy De Tocqueville / Freg
1. Some recognition of creation by state but importance of local control
iii. 3. Local government as quasi proprietor of services Tiebout
1. Citizens as consumers / investors
c. Reynolds: Recognize that local government draws on all three models.
2. Model 1: Local Government as Agent of the State
a. Hunter v. Pittsburgh (S. Ct. rejects challenge to state law consolidating Allegany into Pittsburgh when overall number of voters of Pittsburgh and Allegany approved but majority of Allegany voters rejected.)
i. Reynolds: Hunter is the seminal case that stands for the proposition that local government is a powerless agent of the state and has no rights under the federal constitution.
1. State has power to make changes to local government including boundaries
2. Dillion’s Rule
ii. Court rejects due process and contract clause challenge
1. Contract clause: Protects private contracts / not public “government” contract
2. Due process: State has power to change local governments so no concern about taking.
a. Note 5: Pre 20th Century more of an acceptance of locality as have public and private locality property. Property for government purposes was public.
iii. Reynolds: Problem would be avoided today under state law since often times requires double majorities
b. Gomillion v. Lightfoot (State cannot alter the boundaries of city to exclude blacks from the city in order to deny them of right to vote under 15th amendment)
i. Court limits power of Hunter to provisions it discusses but power of state over municipality does have to respect other aspects of constitution.
ii. Reconciling Gomillion and Hunter
1. 1. No individual rights impacted in Hunter while Gomillion deals with the impacts of individual rights
2. 2. Race
iii. Reynolds: Hunter stands for the proposition of the State’s power over the locality but Gomillion shows that power is not absolute.
iv. Whittaker concurrence: No 15th amendment problem but classification based on race violating 14th amendment.
1. Frankfurter 15th amendment: Avoids impacting redistricting cases or might be better since case involved voting rights.
c. Rogers v. Brockette (Rejects the traditional no standing rule and allows a municipality standing to sue over whether the municipality can be forced by the state to participate in a state school lunch program)
i. View of court is based on understanding of impact of federal constitution on state and local relationship
1. Saying nothing about the relationship between state and local so that is why we get Hunter creature of state view.
